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Subject: Reminder of next teleconference and new developments
This Committee is currently meeting in conjunction with the eTrust subcommittee of the American Bar Association. ---------- Original Message ---------------------------------- From: John Messing <jmessing@law-on-line.com> Reply-To: John Messing <jmessing@law-on-line.com> Date: Thu, 12 Feb 2004 21:14:22 -0700 1. The next call will take place on February 17, 2004 at 1 PM EST and 10 AM PST. Leader's Name: John Messing Conference Dial-in: 512-225-3050 Conference Guest Code: 84759# Maximum Duration of the call: 1.5 Hours Leader's Phone Number: 520-547-7933 2. At the last teleconference we undertook to begin either a paper or symposium on the legal infrastructure for eNotarization established by ESign and the UETA. In furtherance of this goal, and with the kind introduction of David Weitzel to NASS, I was able to join the NotaryAdministrator's list, where I posted this message and received this reply: notaryadministrators Fri, 6 Feb 2004 Volume 1 : Number 21 In this issue: eTrust subcommittee - ABA and LegalXML-OASIS Re: eTrust subcommittee - ABA and LegalXML-OASIS ---------------------------------------------------------------------- Date: Sat, 31 Jan 2004 15:47:20 -0500 From: "jmessing" <jmessing@law-on-line.com> To: <notaryadministrators@list.state.ak.us> Subject: eTrust subcommittee - ABA and LegalXML-OASIS Message-ID: <200401311547.AA3788833446@law-on-line.com> Hello all: I chair the eTrust subcommittee of the American Bar Association and LegalXML-OASIS, two separate organizations that have pooled resources to study best practices and appropriate XML and security standards for eNotarization, commencing with real estate mortgage originations where opportunities exist but are not being aggressively pursued for instaneous electronic mortgage closings, in part because of a lack of legal and technical infrastructure to support enotarizations. Residential real estate financing was a 3.3 trillion dollar industry in 2003, almost a third of our entire national economy. Enormous sums of money are being held up by outdated paper processes, which distort the economics of closings by generating gains and losses on the float of money while the closing paper moves through channels. Large potential revenues from notarial transactions are also lost to state regulatory bodies like the ones many of you represent that could be charge for pings confirming sthe identities Our subcommittee is composed of some actively practicing lawyers, like myself, representatives from mortgage banking and real estate property records standard bodies, and notarial membership organizations. We have adopted as a starting point the view that enotarization in the presence of a licensed human is preferable to automated notarial transactions because in a first instance, a human notary can serve as a live witness to be cross-examined in court if a problem arises, while machine processes spawn expert witnesses, sometimes armies of them, to explain what theoretically and practically was involved in a problem case. We also believe that a determination of voluntary intent by a notary in the course of a notarized transaction is perhaps even more important to electronic processes than their paper predecessors. In a recent case, a U.S. Court of Appeals allowed a signer of an elecronic document to bow out of a (non-notarized) electronically signed transaction because the signer testified that there was a mistake made when his signature was applied. Having a notary pose a question just before signing about the voluntariness of the signature, and attesting to the response of the electronic signer should help immensely in such cases. No machine process has been yet developed that can be used as a substitute for a human asking a signer about the signer's intent. We have also concluded as a group that it is desirable to research whther existing state and federal legislation authorize and/or actually require implementation of eNotarization, without further legislation, and at the earliest possible time. Some members of the eTrust subcommittee are interested in pursuing an inquiry to find out if anyone from this group holds a similar or different view. We invite your participation to formulate one or more papers propounding for a symposium on the subject, which can be offered for publication to the Jurimetrics law series of the ABA Section of Science & Technology Law, which has been very supportive of the work of the subcommittee. The purpose of this email is to find out if anyone from this group has a point of view on the subject of the proposed paper and would like to be included either in the work product of such a project or the ongoing deliberations of the eTrust subcommittee, or both. Another purpose is to find out if there is an interest in establishing a liasion between the groups. We welcome the experience of this group. Thank you and best regards to all. John Messing Chair, eTrust Subcommittee, ABA ABA Representative to OASIS and LegalXML-OASIS Chair, eNotary TC, LegalXML-OASIS Member, Steering Committee, LegalXML-OASIS (520)547-7933 (office) (520)270-1953 (mobile) jmessing@law-on-line.com ------------------------------ Date: 02 Feb 2004 09:04:25 -0800 From: WROSCH Thomas E <Thomas.E.Wrosch@state.or.us> To: notaryadministrators@list.state.ak.us Subject: Re: eTrust subcommittee - ABA and LegalXML-OASIS Message-ID: <401E8316.6397.6616.000*/c=us/admd=/prmd=or.gov/o=SOS/ou=gwise/s=Wrosch/g= Thomas/i=E/@MHS> --PART.BOUNDARY.lion.079b.401e831d.0001 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline John, Both John Jones and I have links with this group: John has been involved in conferences and I am a past president and current member, so we may have the liaison between the notary subcommittee and the NPA already covered. Nevertheless, any additional links are greatly appreciated. Although UETA and E-SIGN (for those states that didn't do UETA) specifically authorize e-notarizations, I think we've observed a number of cases where state law would get in the way. My take on it is that there are some states that may have passed laws specifically addressing this situation, while other states may have barriers that go beyond the authorizing language. UETA says the requirement for a notarization is "...satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record." But there is more to a notarization than information, which is why you can't build a fully electronic equivalent. For example, Oregon requires a rubber stamp to make a notarization valid; the seal is both a security measure and an authenticating element. The physicality - not the information - is what is important. We believe that law is an impediment to electronic notarizations in Oregon. It is likely there are similar elements in other states. That is not to say electronic notarizations are impossible; just that, in my opinion, UETA and E-SIGN don't by themselves overcome all legal obstacles. Parenthetically, when we went to the legislature to enable e-notarizations, the legislators were very insistent that every bit of the notarial process be spelled out in law so they could approve it. It is clear to me that our legislature, at least, does not see the legal structure as sufficient. Tom Tom Wrosch Office of the Secretary of State State of Oregon thomas.e.wrosch@state.or.us (503) 986-1522 fax: (503) 986-1616 Although Tom has not attended the last several teleconferences, I hope he will join us at the next one. 3. Since the posting of this message, and as a result, we have three new members: Mike Shea <Mike.Shea@SOS.STATE.CO.US>. Mr. Shea is with the Office of the Secretary of State of Colorado, where an enotarization project is underway. Jeffrey Kovar <kovarjd@STATE.GOV>. Mr Kovar is with the US Department of State. Ben Snipes<news@BenSnipes.com>. Mr. Snipes is with the Association of Civil Law Notaries of Florida. He is extremely interested in the research and writing project. Please join me in welcoming the new members. 4. I have communicated with our friend from north of the border, Wayne Braid, who has an update of the notarial filing system in British Columbia. I hope Wayne can join us and provide a report. I look forward to talking with each of you at our next teleconference. Best regards. John Messing
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